In Americo Life, Inc. v. Myer, No. 10-0734 (Tex. Dec. 16, 2011), Americo Life, Inc., Americo Financial Life and Annuity Insurance Company, Great Southern Life Insurance Company, the Ohio State Life Insurance Company, and National Farmers’ Union Life Insurance Company (hereinafter “Americo”) and Robert L. Myer and Strider Marketing Group, Inc. (hereinafter “Myer”) contracted for Americo’s purchase of several insurance companies from Myer. Their agreement provided that any dispute would be referred to three arbitrators. Each party was to appoint one arbitrator and the two arbitrators would select the third. It further provided that each arbitrator “shall be a knowledgeable, independent businessperson or professional.” The contract also called for arbitration by the American Arbitration Association (“AAA”) according to the AAA commercial arbitration rules. At the time of the underlying dispute between the parties, the AAA rules provided that “[a]ny arbitrator shall be impartial and independent … and shall be subject to disqualification for (i) partiality or lack of independence ….” In an arbitration dispute before the AAA for breach of contract and wrongfully withheld payment, Myer argued to the AAA that Americo’s selected arbitrator was not impartial (as required by the AAA rules) and therefore should be removed. Americo responded their selected arbitrator was, in fact, impartial. The AAA agreed with Myer and removed the arbitrator from the arbitration panel. The panel found in favor of Myer and Americo filed a motion to vacate the award. The trial court granted Americo’s motion on the ground that its arbitrator was improperly stricken from the panel. The court of appeals, however, reversed, holding that Americo had waived its arguments by not presenting them to the AAA. The issue before the Texas Supreme Court was whether Americo waived its objection to the removal of the arbitrator it selected. The court said that the record demonstrated that Americo did not waive its objections. Americo had argued that the AAA requirements did not apply, that the only applicable requirements were that the arbitrators be knowledgeable and independent businesspersons or professionals, (as stated in the contract) and that its arbitrator met those qualifications. Therefore, the court reversed and remanded for the court of appeals to consider whether the AAA requirements apply. Technorati Tags: law, ADR, arbitration

by Holly Hayes A blog we like, Franklin Solutions, posted about the American Health Lawyers Association healthcare mediation training on February 6 and 7, 2012, in Orlando, Florida. The course is two parts: Part I is taught by Jane Conard (see Disputing blog posts here ) and Jeanne Franklin and is an Introduction to the Basics of Mediation training. The course “will introduce theory, principles, process steps, essential skills and ethical requirements in mediation to those who are considering service as a mediator”. Part II is titled an Introduction to Interest Based Medical Malpractice Mediation and is taught by Chris Stern Hyman, a medmal mediator. The AHLA website describes Part II training as “A specific application of mediation to medical malpractice claims and lawsuits, this training will introduce how interest-based mediators proceed on the principle that the mediation is not simply bargaining for money and as a result use techniques to create greater satisfaction for the parties and promote resolution.” Technorati Tags: Healthcare Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.  

We recently came across an interesting article published at Lexology. The piece, written by Mayer Brown, LLP partner William H. Knull, III, is entitled “Ten Hallmarks of Effective Arbitration Agreements with Sovereigns and State Entities.” Here is an excerpt: Arbitrating with sovereigns involves all of the issues inherent in proceedings between private entities plus a variety of specialized concerns. This article lists 10 of the most critical terms to ensure a level playing field in resolving a dispute with a sovereign party. Unambiguous agreement to submit to arbitration. (Example: “Any dispute arising out of or relating to this agreement shall be finally resolved by arbitration …”.) Explicit agreement to submit to arbitration signed by any governmental entity that may be necessary to the dispute or to enforcement of the award, including the ultimate sovereign if necessary under the circumstances. Enforcement against non-signatories cannot be presumed. Strict compliance with the laws of the sovereign as to procedures to ensure that the substantive agreement, the agreement to arbitrate and the waiver of sovereign immunity by each signatory are all authorized under the sovereign’s constitution, laws and regulations. This should include, if necessary, approval by the legislature, cabinet of ministers or other ultimate authority. Specification of the site of the arbitration. This should be carefully chosen for its political neutrality, the quality and reliability of its arbitration jurisprudence and the respect that its courts have for the arbitral process. If at all possible, the arbitration site should not be in the country of the counterparty. Read the rest of the Hallmarks here. Technorati Tags: law, ADR, arbitration

Via the Court ADR Connection Resolution Systems Institute Resource Center, we learned about a study conducted last year by the Michigan State Court Administrative Office, Office of Dispute Resolution. The study, entitled “Mediation After Case Evaluation: A Caseflow Study of Mediating Cases Evaluated Under $25,000,” found that settlement rates at mediation were higher when all summary disposition motions were decided prior to mediation than when a summary disposition motion was pending. Cases with trial dates scheduled early did not have higher settlement rates than cases without a trial date scheduled early. You may download the full study here.